People v. Gray

Opinion

Filed 11/25/09 NO. 4-07-0696

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County TED GRAY, ) No. 01CF1310 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

In April 2007, a jury convicted defendant, Ted Gray, of four counts of

predatory criminal sexual assault of a child for performing sexual acts with his minor

daughters, A.G. and J.G. The trial court sentenced defendant to four consecutive 10-

year prison terms. Defendant appeals his convictions, claiming (1) they are barred by

the applicable statute of limitations, (2) his trial counsel was ineffective, and (3) his

conviction on one of the counts violated the principles of the one-act, one-crime

doctrine. For the reasons that follow, we affirm.

I. BACKGROUND

The State alleged that in 1998 and 1999, defendant sexually assaulted his

11- and 12-year-old daughters in Coles County and Champaign County. Ultimately,

charges were filed in both counties. First, in Coles County, the State charged defendant

with four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998))

and one unrelated count of unlawful possession of a weapon without a valid firearm owner's identification card (430 ILCS 65/2(a)(1) (West 1998)). Defendant pleaded

guilty to two counts of criminal sexual assault and to the weapons charge in exchange

for the State's dismissal of the other two criminal-sexual-assault charges. The trial court

sentenced defendant to five years in prison.

On July 25, 2001, while defendant was in prison serving his Coles County

sentence, the Champaign County State's Attorney charged defendant, by information,

with five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1)

(West 2000)). On September 6, 2001, the grand jury returned superseding indictments

on all five counts. The State conceded that four of the five Champaign County offenses

were based on the same conduct for which defendant was prosecuted in Coles County.

(Count III in the Champaign County indictment alleged an act that was not previously

charged in Coles County.) Defendant filed a motion to dismiss the other four charges,

claiming they were barred by double jeopardy. The Champaign County circuit court

denied the motion, and defendant filed an interlocutory appeal.

This court affirmed the trial court's order denying defendant's motion to

dismiss, finding that the statutory elements for predatory criminal sexual assault of a

child (720 ILCS 5/12-14.1(a)(1) (West 2000)) differ from those of criminal sexual assault

(720 ILCS 5/12-13(a) (West 2000)), and one offense was not a lesser-included of the

other. Therefore double jeopardy concerns were not implicated. See People v. Gray,

336 Ill. App. 3d 356, 364-65, 783 N.E.2d 170, 177-78 (2003). We found that even

though the Coles County prosecutor was not the "proper prosecuting officer" for the

charges filed in his county because the conduct allegedly occurred in Champaign

-2- County, by pleading guilty to the charges in Coles County, defendant had waived any

objection to the improper venue. Gray, 336 Ill. App. 3d at 366-67, 783 N.E.2d at 179.

The supreme court affirmed this court's decision and remanded the cause to Champaign

County for further proceedings. People v. Gray, 214 Ill. 2d 1, 3, 823 N.E.2d 555, 556

(2005).

On remand, defendant filed a motion to dismiss the Champaign County

charges on the grounds that (1) the statute of limitations had expired (see 725 ILCS

5/114-1(a)(2) (West 2000)), (2) the grand jury was not informed that defendant had

been convicted and punished in Coles County for the same conduct, (3) the State had

failed to set forth in the indictments the nature and elements of each offense, and (4)

the allegations were too vague in terms of the dates of the occurrences.

On June 23, 2006, at the hearing on defendant's motion, defendant's

counsel informed the trial court that by "way of an oral motion to dismiss," he was

withdrawing the motion as to count V because the conduct for which defendant was

charged in that count had allegedly occurred in 1999, not 1998, meaning it was not

barred by the applicable statute of limitations. The court took the matter under

advisement.

On June 29, 2006, the State filed an additional four-count indictment

against defendant (counts VI through IX--those subject to this appeal). While the

charges were identical to counts I through IV, the State corrected the pleading by adding

an allegation that the applicable statute of limitations should be extended due to the

familial relationship between defendant and the victims. The State also alleged the

-3- statute of limitations had been tolled as of July 25, 2001, the filing date of the original

charging instruments.

On June 30, 2006, the trial court found "the statute of limitations

exception [was] fatal" and granted defendant's motion as to counts I through IV because

the State had failed to specifically plead the extension of the statute of limitations due to

the victims being defendant's family members. See 720 ILCS 5/3-6(c) (West 2000).

The State proceeded to a bench trial on count V only. The State alleged

defendant had committed predatory criminal sexual assault in July 1999 by placing his

finger in A.G.'s vagina. The trial court convicted defendant of that offense and sen-

tenced him to 30 years in prison to be served consecutively to his Coles County sen-

tence. Defendant appealed, claiming that this count involved the same conduct as

alleged, and to which he pleaded guilty, in count I of the Coles County information. He

claimed (1) his conviction constituted a violation of double jeopardy, (2) his trial

counsel was ineffective for failing to contest venue, and (3) his conviction constituted a

violation of the one-act, one-crime doctrine. Rejecting all three of defendant's claims,

this court affirmed defendant's conviction. See People v. Gray, No. 4-07-0117 (July 28,

2008) (unpublished order under Supreme Court Rule 23).

In April 2007, while his appeal in case No. 4-07-0117 was pending, the

State proceeded to a jury trial on counts VI through IX. Prior to the start of the trial, the

public defender, Randall Rosenbaum, moved to dismiss the indictments for violating

the applicable statute of limitations. Rosenbaum argued that section 3-6(c) of the

Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-6(c) (West 2006)) required that

-4- the indictments be filed no later than March 25, 2005, for the allegations concerning

J.G., as that was the date she turned 19 years old, and May 27, 2006, for the allegation

concerning A.G., as the date she turned 19. (He argued the State had one year from each

child's eighteenth birthday to file charges against defendant.) Counts VI through IX

were not filed until June 2006. In response, the State argued that section 3-7(c) of the

Criminal Code (720 ILCS 5/3-7(c) (West 2006)) tolled the limitations period because

defendant had been initially charged with the same conduct in counts I through IV in

September 2001. The trial court denied Rosenbaum's motion, stating: "Well, I'm gonna

deny the motion to dismiss, and that will allow the [a]ppellate [c]ourt to make a

determination as to whether or not these offenses are barred." The court proceeded to

trial.

A.G. testified first for the State, stating that she was born on May 27, 1987.

In the summer of 1998 (she was 11 years old at the time), she went fishing with defen-

dant and J.G. During the trip, defendant took the girls underneath a bridge where they

took turns putting his penis in their mouths. A.G. said: "We did what he said." She did

not tell her mother about the incident for two years because she was "scared and

embarrassed."

J.G. testified that she was born on March 25, 1986. She described the

same fishing incident in the summer of 1998 and the same occurrence under the bridge.

She was 12 years old at the time. She also described an incident a month later when

defendant made her put his penis in her mouth in his bedroom. He then made her lay

on the bed with her pants off while he put his mouth on her vagina. Defendant gave

-5- J.G. money so she would not tell anyone.

Dwayne Roelfs, an investigator with the Champaign County sheriff's office,

testified that in April 2001, he learned about and followed up on the Coles County

investigation of the allegations of sexual abuse. He spoke with A.G. and J.G., who told

him that in the summer of 1998, defendant and his family resided in Champaign

County. He said he was familiar with the bridge the girls described and confirmed that

it was in Champaign County.

Darrell Cox, the Coles County sheriff, testified that he investigated the

allegations beginning in November 2000. He conducted a recorded interview of

defendant, who was 35 years old at the time. Each juror was given a transcript of the

interview, and the recording was played for the jury. The State rested.

Defendant moved for a directed verdict, arguing that the charges were not

timely filed. The trial court denied defendant's motion. Defendant did not present any

evidence. The jury found defendant guilty of all four charges.

In May 2007, defendant filed a motion for acquittal or, in the alternative, a

motion for a new trial. Defendant claimed (1) the charges were untimely, (2) portions of

defendant's recorded statement should not have been admitted into evidence, (3) the

trial court erred in denying his motion for a directed verdict, (4) the evidence was

insufficient to convict, and (5) his conviction on count IX violated the one-act, one-

crime rule as he had already pleaded guilty to the offense in Coles County.

In June 2007, the trial court denied defendant's posttrial motion and

sentenced him to four 10-year prison terms to be served consecutively to each other and

-6- to his 30-year sentence on count V. Defendant filed a motion to reconsider his sen-

tence, which the court denied. This appeal followed.

II. ANALYSIS

Defendant raises three claims on appeal: (1) the charges were barred by

the statute of limitations, (2) his trial counsel was ineffective for failing to raise the

statute-of-limitations issue at trial, and (3) his conviction on count IX violated the one-

act, one-crime doctrine.

A. Statute of Limitations

Defendant claims that section 3-5(b) of the Criminal Code (720 ILCS 5/3-

5(b) (West 2000)) bars prosecution of the charges filed in June 2006. That statutory

section sets forth, in relevant part, as follows:

"Unless the statute describing the offense provides

otherwise, or the period of limitation is extended by [s]ection

3-6 [(720 ILCS 5/3-6 (West 2000))], a prosecution for any

offense not designated in [s]ubsection (a) must be com-

menced within 3 years after the commission of the offense if

it is a felony, or within one year and 6 months after its com-

mission if it is a misdemeanor."

When the State refiled the original counts I through IV as counts VI

through IX, it added language to extend and toll the statute of limitations as follows:

"an extended statute of limitations applies herein pursuant

to 720 ILCS 5/3-6(c) [(West 2006)], since [the victim] and

-7- defendant are family members as defined in [s]ection 12-12

of the [Criminal] [C]ode and [the victim] would not have

reached her 18th birthday until [May 27, 2005, for A.G. and

March 25, 2004, for J.G.]. The statute of limitations herein

was tolled pursuant to 720 ILCS 5/3-7(c) [(West 2006)] on

July 25, 2001."

The extension statute, section 3-6(c), provides for the following exception

to the limitation period:

"(c) *** a prosecution for any offense involving sexual

conduct or sexual penetration, as defined in [s]ection 12-12

of this Code [(720 ILCS 5/12-12 (West 2006))], where the

victim and defendant are family members, as defined in

[s]ection 12-12 of this Code [(720 ILCS 5/12-12 (West

2006))], may be commenced within one year of the victim

attaining the age of 18 years." 720 ILCS 5/3-6(c) (West

2006).

Section 3-7(c) of the Criminal Code (720 ILCS 5/3-7(c) (West 2006))

provides that the applicable statute of limitations is tolled when: "A prosecution is

pending against the defendant for the same conduct, even if the indictment or informa-

tion which commences the prosecution is quashed or the proceedings thereon are set

aside, or are reversed on appeal[.]"

Throughout the trial court proceedings, defendant claimed the amended

-8- June 2006 charges filed against him were untimely. Nevertheless, the trial court denied

his motion to dismiss and the case proceeded to trial. Defendant renews his challenge

of the timeliness of the indictments.

The State initially charged defendant with this conduct, by information, on

July 25, 2001. The State alleged the crimes occurred in the "Summer 1998." Pursuant

to section 3-5(b) of the Criminal Code (720 ILCS 5/3-5(b) (West 2000)), these felony

charges were required to be commenced within three years of the commission of the

offense. On June 30, 2006, the trial court dismissed counts I through IV due to the

State's failure to specifically plead an extension of the applicable statute of limitations in

the original charging instrument.

On June 29, 2006, the State amended the charges and returned new

indictments, alleging the identical conduct, but pleading (1) an extended statute of

limitations due to the victims' ages and familial relationship with defendant, and (2)

that the limitations period had been tolled upon the filing of the original charges. Over

defendant's objection, the trial court allowed the State to refile the charges.

This court has previously addressed the issue of whether the trial court

properly allowed the State to amend its charging instrument to include language setting

forth the allegation tolling the statute of limitations. People v. Martin, 266 Ill. App. 3d

369, 640 N.E.2d 638 (1994). In finding no error, we stated:

"Section 111-5 of the Code of Criminal Procedure of 1963

(Procedural Code) (Ill. Rev. Stat. 1991, ch. 38, par. 111-5 [now

725 ILCS 5/111-5 (West 2006)]) provides that a charging

-9- instrument may be amended at any time to correct formal

defects. [Citation.] If the amendment does not involve a

material change in the allegations contained in the original

charging instrument, the amendment is merely technical in

nature and constitutes a formal defect within the meaning of

section 111-5. Furthermore, a defendant's lack of surprise by

the amendment strengthens the finding that the amendment

is merely technical. [Citation.] Where the defendant is

neither surprised nor prejudiced, the trial court commits no

error in allowing the State to amend the charging instru-

ment." Martin, 266 Ill. App. 3d at 373, 640 N.E.2d at 641-42.

Defendant cannot contend he was prejudiced or surprised by the June

2006 amendment charging him with precisely the same conduct that was the subject of

the proceedings then pending against him. The new charges alleged the extension of the

statute of limitations pursuant to section 3-6(c) of the Criminal Code (720 ILCS 5/3-

6(c) (West 2006)), which required the charges to be filed within one year of the victims'

eighteenth birthdays, by March 25, 2005, and May 27, 2006. Because the original

pending July 2001 charges tolled the statute of limitations, the June 2006 charges were

timely filed.

Defendant poses an alternative claim as follows: "Assuming arguendo,

that the State properly charged the extended term and tolling language, the State still

failed to present any evidence regarding either the extended term or a tolling of the

- 10 - limitation term at trial." (Emphasis in original.) In support, defendant cites People v.

Coleman, 245 Ill. App. 3d 592, 596, 615 N.E.2d 53, 55 (1993), for the following proposi-

tion: "[T]he facts upon which an extension of the limitations period is sought are

material allegations to the criminal charge which not only must be proved but must be

pleaded as well." Indeed, other courts have likewise held using similar language. See

People v. Stone, 374 Ill. App. 3d 980, 987, 871 N.E.2d 871, 877 (2007) (an element of the

State's case to allege and prove); People v. Meier, 223 Ill. App. 3d 490, 491, 585 N.E.2d

232, 234 (1992) (allegations must not only be proved but pleaded as well); People v.

Hawkins, 34 Ill. App. 3d 566, 568, 340 N.E.2d 223, 225 (1975) (an element which must

always be pleaded and proved). These holdings are derived from the supreme court's

decisions in People v. Strait, 72 Ill. 2d 503, 381 N.E.2d 692 (1978), and People v. Morris,

135 Ill. 2d 540, 554 N.E.2d 150 (1990). Both cases considered the State's appeal after

the appellate courts had reversed the defendants' convictions, finding that the charging

documents should have been dismissed as insufficient for failing to allege the tolling of

the limitation period. See Strait, 72 Ill. 2d at 506, 381 N.E.2d at 693; Morris, 135 Ill. 2d

at 548, 554 N.E.2d at 153-54.

In Strait, the court stated: "This court has consistently held that[,]

although the precise allegation and proof of time or date are not necessary, the charging

document must allege that the crime was committed at some time prior to the return of

the indictment or the filing of the information and within the period fixed by the statute

of limitations. [Citations.] Alternatively, facts may be alleged and proved which by

reason of the provisions of sections 3-6, 3-7[,] and 3-8 [(now 720 ILCS 5/3-6, 3-7, 3-8

- 11 - (West 2006))] would toll the running of the statute." Strait, 72 Ill. 2d at 505-06, 381

N.E.2d at 693.

In Morris, the court noted that Strait was "still controlling precedent in

Illinois" and reiterated the "long-established rule," stating: "Where an indictment on its

face shows that an offense was not committed within the applicable limitation period, it

becomes an element of the State's case to allege and prove the existence of facts which

invoke an exception to the limitation period." Morris, 135 Ill. 2d at 543, 546, 554 N.E.2d

at 151, 153.

We conclude that the principle, as stated in Strait and Morris, that the

State must plead and prove the circumstances justifying either an extension or tolling of

the limitation period, should not be interpreted to mean the State has to prove such

circumstances to the jury in every case. As discussed below, there may be times when

the State must prove to the fact finder at trial the allegations related to the applicable

statute of limitations. However, in the majority of cases, including the case before us,

the State must prove to the court before the trial, upon a challenge by the defendant,

typically in the form of a motion to dismiss pursuant to section 114-1(a)(2) of the

Procedural Code (725 ILCS 5/114-1(a)(2) (West 2006)), that particular circumstances

justify an extension or tolling of the limitation period. The court either decides the

question of law (725 ILCS 5/114-1(c) (West 2006)), or if questions of fact arise, the court

conducts a hearing to determine the issues (725 ILCS 5/114-1(d) (West 2006)). The

remedy for the State's failure to sufficiently plead and/or prove the circumstances is the

dismissal of the charging document, not an acquittal. Should the trial court find the

- 12 - charging documents insufficient in this regard, the State has the option to amend or

refile the charges. See People v. Cray, 209 Ill. App. 3d 60, 65, 567 N.E.2d 598, 601

(1991) (the State's failure to include tolling or extending information in the indictment is

a technical error and allows for reindictment). The case law referred to above requires

the State to specifically plead the facts upon which it relies in prosecuting the defendant

for a crime that appears to have been committed beyond the limitation period.

"[T]he purpose of requiring specificity [in the charging instrument] is to

provide notice to the defendant of precisely what the State will attempt to prove (and

therefore to allow the defendant an opportunity to prepare a defense)***." Morris, 135

Ill. 2d at 547, 554 N.E.2d at 153. There are a multitude of statutory reasons for the

possibility of extending or tolling the statute of limitations. See 720 ILCS 5/3-6, 3-7

(West 2006). For that reason, it necessarily follows that the State should be required to

sufficiently and specifically plead such circumstances in order to provide the defendant

notice. If those circumstances are not sufficiently and specifically pleaded, the defen-

dant may challenge the sufficiency of the indictment or information, as stated above, by

filing a motion to dismiss pursuant to section 114-1(a) of the Procedural Code (725 ILCS

5/114-1(a) (West 2006)). Upon such a challenge, the burden shifts to the State to prove

to the trial court that (1) the prosecution of the defendant is proceeding within the

applicable time frame, (2) the charging instrument is, in fact, valid, and (3) the case

should proceed to trial. The State's burden to "prove," as the term is used in the above-

cited case law, does not mean the jury must always determine whether the extension or

tolling applies. That, in and of itself, is a question of law for the trial court. See Barnett

- 13 - v. Clark, 113 Ill. App. 3d 1091, 1092-93, 448 N.E.2d 254, 254 (1983) (question of whether

a statute of limitation is tolled is a question of law). See also People v. Bruner, 343 Ill.

146, 156, 175 N.E. 400, 404 (1931) (long-established rule that jurors in a criminal trial

have no right to decide questions of law).

Our decision here that the State must allege and prove to the trial court,

not always to the jury, that the prosecution is proceeding within the applicable statute-

of-limitations period is supported, not only by the case law set forth above, but by the

section of the Procedural Code governing motions to dismiss. Section 114-1(a)(2) of the

Procedural Code (725 ILCS 5/114-1(a)(2) (West 2006)) provides that a defendant may

move to dismiss the charging instrument if he believes the charges are barred by the

limitation period and no extension or tolling provision applies. Here, no questions of

fact were open for resolution as to the circumstances justifying an extension of the

statute of limitations because the ages of the victims and their familial relationship to

defendant were not contested. Section 114-1(c) provides that the trial court shall

determine any question of law presented by a motion to dismiss. See 725 ILCS 5/114-

1(c) (West 2006). Thus, we find sections 114-1(a)(2) and (c) of the Procedural Code

(725 ILCS 5/114-1(a)(2), (c) (West 2006)) do not run afoul of the principle set forth in

Strait and Morris. Whether the prosecution of a defendant is barred by the applicable

statute of limitations and, likewise, whether the applicable statute of limitations has

been extended or tolled are generally questions of law that must be decided by the trial

court. The State has the burden of pleading and proving any element extending or

tolling the limitation period if the defendant challenges the timeliness of the charges in

- 14 - a pretrial motion to dismiss.

As defendant indicates, a jury instruction addresses the State's burden of

proving any exception to the applicable statute of limitations. See Illinois Pattern Jury

Instructions, Criminal, No. 24-25.23 (4th ed. 2000). However, we have found no

appellate decision referencing the use of this instruction at trial. The committee note

regarding this instruction quotes Morris as the basis for the instruction. See Morris, 135

Ill. 2d at 546, 554 N.E.2d at 153. Neither Morris nor any case referring to the State's

burden to prove this element addresses the issue in the context of a jury trial. See

Morris, 135 Ill. 2d at 546, 554 N.E.2d at 153 (question presented upon a motion to

dismiss); Strait, 72 Ill. 2d at 504, 381 N.E.2d at 693 (bench trial); People v. Carman, 385

Ill. 23, 24, 52 N.E.2d 197, 198 (1943) (jury trial, but the court noted the issue presented a

question of law); People v. Ross, 325 Ill. 417, 418, 156 N.E. 303, 303 (1927); Stone, 374

Ill. App. 3d at 981, 871 N.E.2d at 873 (guilty plea); Coleman, 245 Ill. App. 3d at 593, 615

N.E.2d at 54 (motion to dismiss); Meier, 223 Ill. App. 3d at 490, 585 N.E.2d at 233

(bench trial); Hawkins, 34 Ill. App. 3d at 567, 340 N.E.2d at 223 (bench trial); People v.

Munoz, 23 Ill. App. 3d 306, 306, 319 N.E.2d 98, 99 (1974) (motion to dismiss).

Although there have been no reported decisions in which the jury was

required to determine a statute-of-limitations issue, such a situation is possible. If the

information or indictment sufficiently alleges that the crime occurred within the

applicable limitations period, a defendant would have no basis to challenge the charging

document in a pretrial motion. See People v. Adams, 161 Ill. 2d 333, 342, 641 N.E.2d

514, 518 (1994) (pretrial motion was not required challenging venue as it was suffi-

- 15 - ciently alleged; failure to prove at trial was another matter). However, a factual issue

may arise at trial in the form of witness testimony or documentary evidence. In that

case, the factual issue would be resolved by the jury and the jury would be instructed

regarding the applicable law. This is not one of those cases. The State alleged the

extension and tolling of the statute of limitations. Although defendant challenged the

timeliness of the charges, he did not dispute the victims' birthdays were different than

those alleged in the charging instrument. He raised no factual dispute on the conditions

upon which the State relied in extending the limitation period. There was nothing in

this case for the jury to decide.

Simply put, the decision of whether circumstances exist that either extend

or toll the applicable statute of limitation is typically not one for a jury if that issue can

be raised and argued prior to trial. That is, if the question is raised by the allegations as

they appear in the charging instrument. The State's burden of proof does not always

extend to a responsibility to adduce evidence of the exception to the limitations period

before the jury. Again, the State must plead and subsequently prove to the trial court

the circumstances that would justify any extension or tolling of the general applicable

statute of limitations when the defendant challenges the timeliness in a pretrial motion.

Here, the State satisfied its burden when defendant challenged the

timeliness of the indictments. At a hearing, the State proved, to the satisfaction of the

trial court, that circumstances existed that effectively tolled and extended the applicable

statute of limitations. We find no error in the court's decision.

B. Ineffective Assistance of Counsel

- 16 - Defendant next contends his trial counsel was ineffective for failing to

present a defense and tender the appropriate jury instruction relating to the statute-of-

limitations issue. Defendant urges this court to consider his claim in the context of the

standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,

693, 104 S. Ct. 2052, 2064 (1984) (to succeed, a defendant must demonstrate counsel's

substandard performance and resulting prejudice). Our decision on the previous issue,

set forth above, precludes further discussion on this issue and is determinative of

defendant's claim of ineffective assistance of trial counsel. We found no error in the

trial court's decision allowing the State to proceed on the June 2006 indictments, which

sufficiently alleged the statute of limitations had been extended and tolled.

C. One-Act, One-Crime

Finally, defendant contends his conviction on "count IV" violated the one-

act, one-crime rule. (Throughout his argument in his opening brief, defendant refers to

"count IV" even though that count was dismissed prior to trial. In his reply brief, he

admits the reference to count IV was error and he intended the same argument with

regard to count IX. Therefore, we will address the matter with reference to count IX.)

Prior to the instant charges being filed against defendant in Champaign

County, defendant pleaded guilty to similar charges in Coles County. In 2000, Coles

County charged defendant with four counts of criminal sexual assault (720 ILCS 5/12-

13(a)(1), (a)(3) (West 1998)). Defendant pleaded guilty to two counts (counts I and II)

in exchange for the State's dismissal of the remaining two. Count II alleged that in 1998,

in Coles County, defendant sexually penetrated J.G. by placing his mouth over her

- 17 - vagina and his fingers in her vagina. Count IX of the Champaign County indictments

alleged defendant placed his mouth on J.G.'s "sex organ" in the summer of 1998 in

Champaign County. Throughout these proceedings, including the previous appeals, it

has been uncontested that the Coles County charges and the Champaign County charges

are based on the same acts.

Defendant argues that the one-act, one-crime rule has been violated in

that defendant has been punished twice for the same act. He acknowledges that

typically such violation is remedied by vacating the conviction of the lesser crime. The

lesser crime in this instance is his conviction in Coles County of criminal sexual assault

(720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)), a Class 1 felony. As defendant admits, this

court lacks the authority to vacate that conviction because it is not before this court in

this appeal. Instead, he argues that, due to the "unique problem" before us, we should

vacate his Champaign County conviction and sentence on count IX for predatory

criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2000)), a Class X felony, despite

the fact that it is considered the more serious offense.

The case law makes clear that "[o]f course, when a defendant is charged in

several counts with a single offense and multiple convictions have been entered, the

'one-act, one-crime' doctrine provides that judgment and sentence may be entered only

on the most serious offense." People v. Smith, 233 Ill. 2d 1, 20, 906 N.E.2d 529, 540

(2009). See also People v. Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009);

People v. Mack, 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898 (1984). Some discussion of

the general principles regarding the application of the one-act, one-crime doctrine is

- 18 - necessary for an understanding of our disposition. In People v. King, 66 Ill. 2d 551, 363

N.E.2d 838 (1977), the supreme court held:

"Prejudice results to the defendant only in those

instances where more than one offense is carved from the

same physical act. Prejudice, with regard to multiple acts,

exists only when the defendant is convicted of more than one

offense, some of which are, by definition, lesser included

offenses. Multiple convictions and concurrent sentences

should be permitted in all other cases where a defendant has

committed several acts, despite the interrelationship of those

acts. 'Act,' when used in this sense, is intended to mean any

overt or outward manifestation which will support a differ-

ent offense. We hold, therefore, that when more than one

offense arises from a series of incidental or closely related

acts and the offenses are not, by definition, lesser included

offenses, convictions with concurrent sentences can be

entered." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.

We find that none of the factors set forth in King apply here. First, we do

not have a situation where more than one offense is carved from the same physical act.

Regardless of any concession on the parties' behalf that the two different prosecutions

in two different counties were based on the same conduct, the concept with regard to a

particular act is an impossibility. Granted, some of the conduct alleged in the various

- 19 - counts in both counties may have overlapped in terms of where the incident actually

occurred. Some incidents may have occurred in Coles County, some in Champaign

County, and some in both counties. However, based on the record before us, we can

assume only that defendant, on more than one occasion, placed his mouth on J.G.'s

vagina. Defendant admitted that one such act occurred in Coles County. The State

proved at trial that one such act occurred in Champaign County. The same physical act

could not have occurred in both counties at the same time. Thus, based on this record,

we do not have before us the situation set forth in King where "more than one offense is

carved from the same physical act." King, 66 Ill. 2d at 566, 363 N.E.2d at 844.

Second, we do not have a situation where defendant has suffered prejudice

from being convicted of more than one offense for multiple acts because neither of the

two offenses for which he was convicted is, by definition, a lesser-included offense of the

other. See Gray, 214 Ill. 2d at 8, 823 N.E.2d at 559 (each offense required proof of an

element not required by the other). If the offense is not a lesser-included offense, then

multiple convictions are permissible. People v. Rodriguez, 169 Ill. 2d 183, 186, 661

N.E.2d 305, 306-07 (1996).

The evidence in this case has been muddled with inconsistencies about

where and when defendant actually sexually abused the victims. Evidence supports the

conclusion that the acts occurred in either or both counties. Our duty as a court of

review is not to determine where or when the conduct actually occurred. See In re Gino

W., 354 Ill. App. 3d 775, 777, 822 N.E.2d 592, 594 (2005) ("The fact finder, not a court

of review, must assess the credibility of the witnesses, resolve conflicts in the evidence,

- 20 - and decide what reasonable inferences to draw from the evidence"). We must assume,

given this record, that the act alleged in count IX occurred at least once in Coles

County, as defendant admitted by pleading guilty to count II there, and at least once in

Champaign County as the jury found based on the evidence presented during trial.

With more than one act at issue, the one-act, one-crime doctrine is inapplicable. See

People v. Simpson, 54 Ill. App. 3d 504, 506, 369 N.E.2d 915, 916 (1977) (one-act, one-

crime does not apply when "two offenses [that] constitute different acts *** arose from

different conduct occurring in different counties and at different times").

During the pendency of this appeal, defendant filed a motion to strike

portions of the State's brief. In particular, defendant claimed the State's citation to this

court's prior Rule 23 order in People v. Gray, No. 4-07-0117 (July 28, 2008) (unpub-

lished order under Supreme Court Rule 23), was improper. We ordered the motion to

be taken with the case and we now deny defendant's motion as the citation was not

made as a citation to the law enumerated in our previous Rule 23 order but rather a

reference to the prior proceedings before this court.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court's judgment. As part of

our judgment, we award the State its $75 statutory assessment against defendant as

costs of this appeal.

Affirmed.

KNECHT and POPE, JJ., concur.

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